Case-Law adopted by China?

By RUIYI LI

On the 26th of November 2011, the Supreme People’s Court of China (SPCC) announced the first set of ‘guiding cases’: two civil law cases and two criminal cases. This marks the establishment of the guiding cases system in China. What is a guiding case? A guiding case is a judgement selected by the SPCC from judgments already handed down by courts – both lower level courts and the SPCC itself. Once the judgment has been selected by the SPCC as guiding case, the lower courts in the Chinese legal system are then required to take account of it. This introduces something comparable to, but distinct from, the Common Law doctrine of precedent into the Chinese system, and may lead to a profound shift from previous practice. Generally speaking, China has adopted the model of a civil law legal system, without a doctrine of precedent. This is because, in part, the primacy of the National People’s Congress, the principle legislative body in China, is taken to exclude a doctrine of precedent. Only the National People’s Congress can create law. If the Courts can make law in their judgments through the interpretation of legislation, such interpretation would encroach upon the sovereignty of the NPC. As this note will explain, the solution of the ‘guiding case’ attempts to preserve this feature of the Chinese Constitution, whilst giving some power to shape the law to the judicial branch.

Art. 2 of the Work Rules in Regard to Guiding Cases (Work Rules) provides a definition of the type of case that may be chosen by the SPCC as part of the guiding case system. The judgment of the guiding case must be already in force, that is, it must have already been decided by a court, and the case must possesses at least one of the following features: (1) the case has received broad social attention, (2) the legislation applied in the case itself has been drafted in very broad terms, (3) the type of dispute is a paradigm, (4) the case raises difficult, complicated, or new issues, (5) or, finally, a case that does not fall within any of the former four but nevertheless merits a guiding function.

Four judgments were chosen by the SPCC in the first round of the guiding case system.

Centaline Property Agency Ltd. China. Shanghai v. Tao Dehua concerned a disputed brokerage contract arising in the dealing of second-hand properties. This judgment held that a property sale contract is invalid if the purchaser who has committed to a brokerage contract tries to exclude the agent who organised the deal and buy direct from the seller. The Court allowed an exception to this rule where the same housing stock information had been released by more than one agency – in this instance, the purchaser is entitled to deal with the one who offers the lowest price and best service. The Court aimed to protect the lawful ri…